Developments in The Doctrine of Unconscionability and Other Equitable Doctrines: A Discussion of BOK v BOL

In BOK v BOL, the Plaintiff successfully set aside a Declaration of Trust (“DOT”) which stated that all his property was to be held jointly with his then-wife (the 2nd Defendant) in favour of their son (the 1st Defendant).

One of the equitable doctrines that the Plaintiff successfully relied on was undue influence, specifically, “Class 2A” undue influence as per the classification in Royal Bank of Scotland v Etridge (No. 2) (“Etridge”)[1]. In a twist, the Plaintiff’s case was aided by a presumption of undue influence which arose not because of the spousal relationship then-existing between the 2nd Defendant and the Plaintiff, but through a finding that there was an implied solicitor-and-client relationship between them.

Of greater interest was the Honourable Justice Valerie Thean’s (the “Judge”) exegesis of the doctrine of unconscionability in her reformulation of the test in Cresswell v Potter (“Cresswell”)[2], which had been endorsed in earlier Singapore cases. It was previously unclear how one was to apply the test for “oppression or abuse of confidence”, but the Judge has now crystallised the test into a two-stage enquiry.

II. FACTS

The Plaintiff and the 2nd Defendant had a strained relationship. Of note was the fact that the 2nd Defendant had practised law for four years at some point prior to the salient facts arising.

On 19 March 2014, the Plaintiff’s mother was killed. The Plaintiff returned from his overseas trip that day, and was invited by the 2nd Defendant to stay with her family, with whom she resided.

The Plaintiff’s mother’s funeral was held on 23 March 2014. On the night of 26 March 2014, the 2nd Defendant drafted the DOT by hand and asked the Plaintiff to sign it.

The Plaintiff later disputed the validity of the DOT, stating that he was misled and/or pressured into signing the DOT given his emotional vulnerability at that time.

The Defendants claimed that the Plaintiff was “lucid” and had signed the DOT on his own volition.

III. THE JUDGE’S DECISION

A. Factual Findings

The Judge first noted that the DOT was not “an obvious or rational mechanism” to provide for a child, especially given that the Plaintiff was a young father who was still building his career.[3]

This was followed by several key factual findings relating to the circumstances under which the DOT was signed. These include:

The Plaintiff was suffering from acute grief as a result of his mother’s violent death. This was exacerbated by the Plaintiff’s close relationship with his mother and the fact that he was an “isolated individual” with few relationships. The combination of these factors rendered the Plaintiff susceptible to the 2nd Defendant’s influence.[4]

The 2nd Defendant had made misrepresentations to the Plaintiff to the effect that the DOT would only take effect upon the Plaintiff’s death, and he was free up till then to deal with his assets as he wished.[5]

It was further found, given the 2nd Defendant’s “inexplicable sense of urgency” that her motive for doing so was “to procure the [Plaintiff’s] signature on the DOT… to create an instrument by which she could exert control on the Plaintiff and his assets in the event that their relationship turned sour”.[6]

The 2nd Defendant’s father, a senior lawyer, was present when the 2nd Defendant asked the Plaintiff to sign the DOT. Specifically, the Judge found that “the 2nd Defendant’s father legitimised the 2nd Defendant’s attempt to ask the Plaintiff to sign the DOT”.[7]

B. Misrepresentation and Mistake

Given the Judge’s findings of fact, her Honour had no trouble finding on the basis of trite principles that the Plaintiff was entitled to rescind the DOT on grounds of misrepresentation and mistake.

“Class 1” undue influence, where the claimant must prove that the defendant actually had the capacity to influence him/her and such influence was unduly exercised to bring about the impugned transaction;

“Class 2A” undue influence, where the claimant need only show that he/she had a relationship falling under one of the legally recognised categories of trust and confidence, and that the transaction was manifestly disadvantageous to the claimant;

“Class 2B” undue influence, where the claimant has to prove that there was a relationship of trust and confidence, and that the transaction was manifestly disadvantageous to the claimant.

Having regard to the facts, the Judge found that the DOT could be set aside for “Class 1” undue influence.[9]

She then considered if “Class 2A” undue influence could also be established. Noting that the spousal relationship is outside the ambit of relationships that give rise to “Class 2A” presumptions, the Judge considered if there was an implied retainer between the Plaintiff and 2nd Defendant. This was significant because the relationship of solicitor and client is one which gives rise to the “Class 2A” presumption.[10]

The approach adopted by the Judge was to determine “whether on an objective view an intention to enter into an implied retainer may be imputed to the parties”[11]. Her Honour was of the view that she was not constrained to fit the facts of the present case into one of the categories referred to in earlier cases such as CIFG Special Assets v Polimet Pte Ltd.[12]

The Judge found that there was an implied retainer since the Plaintiff had relied on the 2nd Defendant on many occasions for legal advice because she was a trained lawyer, and since the 2nd Defendant prepared the DOT on her own accord.[13]

D. Unconscionability

The Judge remarked that the doctrine of unconscionability was of “uncertain scope and existence in Singapore law”.[14] Her Honour affirmed the applicability of the legal requirements set down in Cresswell (the “Cresswell Test”), and stated that once these requirements were established, the onus was on the defendant to show that the transaction was “fair, just and reasonable”, failing which the contract would be vitiated for unconscionability.[15]

Examining the Cresswell Test in detail, the Judge considered that it comprised two limbs, with the second limb representing the general test to be applied and the first limb being an example of circumstances under which the second limb would be satisfied. The limbs were:

(1) Cases where (i) the claimant was “poor and ignorant”, (ii) the transaction was at an undervalue and (iii) the Claimant had not been independently advised; and

(2) Cases where there were “circumstances of oppression or abuse of confidence”, though this was to be considered in light of the gloss added in a later case that required the defendant to have imposed the terms in a “morally reprehensible manner” or which “affects his conscience”.[16]

The Judge compared the Creswell Test with the Australian decision of Commercial Bank of Australia Ltd v Amadio & Anor[17], where the High Court of Australia embraced the more generous approach of setting aside contracts whenever the claimant was under a “special disadvantage”, e.g. a lack of bargaining power (the “Amadio Principle”).[18] Notably, no morally reprehensible behaviour was required.

Her Honour affirmed earlier authorities which eschewed the Amadio Principle in favour of the Cresswell Test. This was primarily on the basis that the former principle would go too far in undermining the certainty of contracts.[19]

The Judge then considered if a more nuanced approach was warranted where voluntary dispositions were concerned, given that the law’s concern with protecting bargains was not engaged in such cases.[20] She concluded that it was not, given that the fact that a disposition was voluntary in nature did not render it more likely to be procured by unconscionable conduct.

However, her Honour was prepared to change or expand on the law where it came to the interpretation of the “oppression or abuse of confidence” limb of the Cresswell Test. She observed that this limb of the test had its roots in the doctrine of equitable fraud and as such, was meant to embody the principle that equitable fraud could be presumed from “weakness on one side, usury on the other, or extortion and advantage taken of that weakness”.

With this in mind, the Judge reformulated the “oppression or abuse of confidence” limb into a two-stage test as follows:

“First, there must be weakness on one side. Such weakness could arise from poverty, ignorance or other circumstances, like acute grief in this case. Lack of independent advice would almost always deepen the weakness.”

“Second, there must be exploitation, extortion or advantage taken of that weakness. A transaction at undervalue would be a necessary component of this requirement”.[21]

The Judge also explained that it was the second stage of the above test that distinguished the “oppression or abuse of confidence” limb from the Amadio principle, and emphasised the importance of the requirement of unconscionable conduct in addition to disadvantageous terms.[22]

IV. CONCLUSION

The Judge had alluded to the fact that it may be easier to raise unconscionability as grounds for setting aside in the case of a voluntary disposition, as the requirement of an undervalue transaction would necessarily be met.[23]

The writer posits that this does not make it unduly easy to set aside gifts in the familial context. This is because a contract so impugned can nonetheless stand if the defendant shows that it was “fair, just and reasonable”, and the relationship between donor and donee would naturally have to be taken into account in such analyses.

While the Honourable Judge’s reformulation has no doubt made it easier to apply the “oppression or abuse of confidence” limb of Cresswell, this has arguably resulted in a convergence with “Class 1” undue influence, such that the legal requirements of each doctrine are likely to be satisfied by the same sets of facts. This is illustrated by the table below:

It remains to be seen if, upon application of these tests, there will be contracts set aside by one set of vitiating factors but not the other. Until then, it seems that the utility of the doctrine of unconscionability continues to be suspect.

[9] Specifically, she held that the 2nd Defendant had the requisite capacity to influence the Plaintiff given his mental state and the fact that she had previously advised him on matters of law. Finding that the 2nd Defendant had in fact “twisted the mind” of the Plaintiff, the Judge stated that “Class 1” undue influence had been established.